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Pledge to add members soon, says panel head

Thursday, February 04, 2016 @ 7:00 PM | By Cristin Schmitz

The head of the federal tribunal bringing “justice at last” to historic First Nations claims says Justice Minister Jody Wilson-Raybould has pledged to appoint new members soon, after the body verged on collapse last year due to the governing Conservatives’ failure to appoint judges.

Justice Harry Slade, the B.C. Supreme Court judge reappointed by the new Liberal cabinet last month to his second five-year term as chair of Specific Claims Tribunal (SCT), said the adjudicative body — which is currently limping along with him as the only full-time judge — will get a new lease on life when three new members are named.

“I think it was the intention of the previous administration to have the names of the three additional judges go forward to cabinet, but it didn’t happen,” said Justice Slade, who repeatedly told the predecessor government about the problem, before publicly warning in 2014, and again last year, that the tribunal the Conservatives created in 2008 (in collaboration with the Assembly of First Nations) was in danger of failing.

“I never had a conversation with [Rob] Nicholson when he was minister of justice. I never had a conversation with [Peter] McKay when he was minister of justice,” remarked Justice Slade.

“Within several weeks of [the Liberals] forming a government, I did receive a call from the current minister who assured me that my nomination would go forward to cabinet at the earliest opportunity, and that work was being undertaken to bring forward the nominations of the other three judges.”

The mandate of the tribunal is to expeditiously decide First Nations’ land administration and treaty claims up to a value of $150 million. The Liberal government has committed to accelerating reconciliation with indigenous Canadians.

As a former B.C. regional chief with the Assembly of First Nations, Wilson-Raybould is well acquainted with the tribunal’s mission.

“I know she supports the tribunal,” Justice Slade said.

Currently, Justice Slade, and Quebec Superior Court Justice Johanne Mainville and Ontario Superior Court Justice Larry Whelan (who dedicate half their time to the tribunal), are snowed under with work.

The tribunal’s enabling legislation contemplates up to six full-time judges handling the job. The anticipated next round of appointments will raise the current 1.5-judge complement to the equivalent of 3.5 full-time judges. There will be two supernumeraries appointed from Ontario and B.C. as well as one Quebec Superior Court judge, who will work at the tribunal half-time.

“We’re going to need more,” Justice Slade said.

About 70 cases are now in the tribunal’s pipeline (all of which go to full hearings), with many more anticipated, he added.

“We’re starting to hear concerns from claimants that it’s taking too long,” he said. “The impact of the delay [in appointments] is that the tribunal is delayed in being able to move claims along. And…a big part of the idea of creating the tribunal was to first create a venue in which these claims could be determined with finality, and to enable that to happen expeditiously.”

He said he did not know why the Conservatives didn’t make the appointments. “They certainly had lots of time to do it because these nominations have been around for a considerable time, at least six months before the election call,” he said.

When Justice Slade spoke out in an exclusive interview with The Lawyers Weekly last April after raising the problem months before in his annual report to the justice minister, the judge said “right away some senior person from the Department of Justice called to say ‘we’re getting on with these appointments.”

But no appointments materialized before former then prime minister Stephen Harper called an election last August.

The term “specific claims” generally refers to monetary damage claims made by a First Nation against the Crown regarding the administration of land and other First Nation assets, and to the fulfilment of Indian treaties that have not been accepted for negotiation or that have not been resolved through a negotiated settlement within a specified time frame. The complex cases are heard locally in First Nations communities across the country.